Bad news for marriage, good news for government power

Like the lower court decisions in the case, the majority opinion in Windsor reads like a result in search of a reason.

The basic (perhaps the wrong word for the convoluted reasoning involved) rule the majority applies seems to be that DOMA is unconstitutional because it interfered with the “equal dignity” of a legal status created by the legislature of New York to provide “protection and dignity” to a private relationship the Court had previously ruled deserved constitutional protection.

It’s not clear how this could be formulated as a legal test for future cases. If the U.S. Supreme Court some action is constitutionally protected from criminal prosecution, and a state (or other government entity?) provides a legal status to that relationship, and the federal government (or would this apply to other branches of government?) does not recognize that status, that latter decision is unconstitutional? It’s hard to imagine a scenario where that rule would be helpful.

It’s also hard to imagine which constitutional provision such a holding derives from. The “equal status of state laws for federal law purposes” clause?

It’s also unclear why New York’s statutory enactment creates a de facto amendment to the state constitution so that it can invalidate an (arguably) conflicting federal law. Does a state statute amend the constitution in every instance or only when the statue provides dignity?

At the end of the day, the power of the federal courts is certainly enhanced because it now has an entirely novel (and pretty subjective) standard of constitutional review (the “careful consideration” of “unusual” laws test). The courts (as I’ll discuss below) also seem to now have a much broader power to interfere with social institutions when they believe these no longer promote favored objectives like the provision of equal dignity.

An executive who wants to circumvent a law with which he or she does not agree is also aided by today’s decisions. That person can refuse to defend a law and choose whether or not to appeal (whether or not the decision appealing from is adverse to its position). If the appeal is sought to get a favorable result at a higher level, that’s fine. If an appeal is avoided to prevent an unfavorable result, that is presumably fine as well.

Besides the voters of California, the loser in today’s decisions is not a person but an idea, although a very important one—the idea of marriage. The majority opinion in Windsor contains an important passage that tips us off on the majority’s assumptions about the nature of marriage:

The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits. Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State, and it can form “but one element in a personal bond that is more enduring.” Lawrence v. Texas, 539 U. S. 558, 567 (2003). By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond. For same-sex couples who wished to be mar­ried, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledg­ment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving under­standing of the meaning of equality. Slip op. at 24.

The passage begins by saying the government’s interest in recognizing marriage is different from its interest in other laws. But, why? Apparently, it is a way for the state to give “protection and dignity” to a “personal bond” based on “private, consensual sexual intimacy.” So, by this account, the majority opinion rests on an assumption about the meaning of marriage that is highly contested. In other words, the majority seems to be taking sides in the marriage debate. As the majority opinion makes clear, the question of whether the Constitution mandates marriage redefinition for the states is still open. This opinion could be read, however, as putting a thumb on the scale in future cases.

Additionally, the use of terms like “injure” and “stigma” to describe the effects of DOMA seems to provide the kind of language future litigants will want to use in challenges to state marriage laws. They, unfortunately, tar those who think there is something unique and uniquely valuable about marriage with the brush of bigotry.

Based on today’s decisions, the future looks to hold more litigation, more judicial and executive discretion, but a diminished social role for marriage. Overall, that’s very bad news.

Aug. 2015

In a conversation with Bill Kristol of The Weekly Standard, Justice Samuel Alito reflects upon (among other things) his arrival on the Court, recent First Amendment cases, the themes in his dissent in Obergefell v. Hodges, and his love for baseball.